PARTIES:	WESLEY BLACKSMITH

		v

		ROBERT MATERNA

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN 
		TERRITORY AT KATHERINE

FILE NO:	JA 21 AND 22 OF 1996

DELIVERED:	30 AUGUST 1996

HEARING DATES:	

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:

	Appellant:	C Gibson
	Respondent:	P Bannon QC

Solicitors:

	Appellant:	KRALAS
	Respondent:	DPP

Judgment category classification:	C
Judgment ID Number:	MIL96019
Number of pages:	8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT KATHERINE

No. JA 21 AND 22 OF 1996

		BETWEEN:

		WESLEY BLACKSMITH
				Appellant

		AND:

		ROBERT MATERNA
				Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 30 August 1996)

	This is an appeal against sentence.

	The appellant was charged on information with two counts of aggravated assault.  The first information dealt with an aggravated assault on Phillip John Tyler which occurred on 14 March 1996 at Katherine, the circumstance of aggravation being that Mr Tyler suffered bodily harm.  The second information dealt with an aggravated assault on 15 March 1996 at Katherine upon Cynthia Bibwee, the circumstances of aggravation being that Cynthia Bibwee was a female and the appellant was a male and that Cynthia Bibwee was threatened with an offensive weapon, namely a length of garden hose, a piece of ant hill approximately thirty centimetres in diameter and a chair.

	The appellant pleaded guilty to both charges.  In relation to the second count he was convicted and sentenced to six months’ imprisonment with effect from 15 March 1996.  In relation to the first count he was convicted and sentenced to three months’ imprisonment cumulative.  Both matters were dealt with summarily by the learned magistrate at the same time.

	The facts as alleged and which were accepted by the learned magistrate were that at about 10.30 pm on Thursday 14 March the appellant was at the back bar of the Katherine Hotel drinking with some relatives and his wife.  He started to argue with his wife and followed her into the female toilets.  He was seen by a staff member of the hotel, Mr Tyler, who followed after him.  The appellant started to punch his wife but Mr Tyler separated the appellant and his wife and told the appellant to leave the premises.

	The appellant became agitated and started to throw punches at Mr Tyler, the victim in relation to count one.  A scuffle ensued and they fell over.  The appellant then punched at Mr Tyler and pushed him over again.  As a result of the incident Mr Tyler received a broken left upper arm.  After the scuffle was over the appellant was then escorted from the premises.

	The appellant, when spoken to by the police on 15 March, admitted throwing punches but claimed that his punches had missed.  He also claimed that the victim fell in the scuffle and that he was not pushed.  The appellant claimed that he was drunk and agitated because of a fight involving his wife.

	On the following day at 10.00 am the appellant was in Katherine Terrace near the ANZ Bank.  He found his wife, Cynthia Bibwee, in the street.  He took her by the hair and marched her back to Red Gum about a kilometre away.  The learned magistrate accepted that the victim walked to Red Gum but he also found that the appellant had a firm grip on her.  When he got her there he sat the victim down on a chair, punched her in the face, whipped her with a hose, hit her in the head with a piece of ant hill and then threw a chair at her.  When spoken to by the police he said that he was jealous of his wife sleeping around and that he was “hurting inside”.  She suffered cuts and bruises to her face, mouth, neck and arms and also had a broken tooth as a result of the assault.

	In submissions put before the learned magistrate, counsel for the appellant explained that the incidents related to jealously over the fact that the appellant’s wife had left him for another man.  The appellant and his wife had met in approximately 1990 and entered into a tribal marriage.  Both were extremely young at the time; indeed the appellant was only twenty-one at the time of the offence.  The precise age of the victim was not known but it is understood that she was around about the same age as the appellant.  It would appear that the argument in Kirby’s Hotel was related to the relationship which the victim had established with another man, as were the assaults on the victim the following day.  It was submitted that the appellant had no intention of breaking the arm of Mr Tyler and did not foresee that as a possible outcome of his actions.  The learned magistrate accepted that submission but nevertheless observed that the possibility of such an injury is reasonably foreseeable if there is a scuffle in a confined space such as in the toilet of a hotel.

	The appellant only had one prior conviction which was for exceed .08 on 20 January 1994 when he was convicted and fined.

	The grounds of appeal are as follows:

1.	That the sentences imposed by the sentencing magistrate were manifestly excessive.

2.	That the magistrate placed an inordinate emphasis on the principle of general deterrence.

3.	That the magistrate did not place sufficient weight on the principle of rehabilitation.

4.	(In relation to the second charge only) that the learned magistrate erred in taking a circumstance of aggravation into account which was not charged in the information, namely that the victim suffered bodily harm.

5.	That the learned magistrate erred in failing to give any or any proper consideration to the imposition of a suspended sentence.

	In support of ground four, Ms Gibson relied upon s 305(4) of the Criminal Code which reads as follows:

		“If any circumstance of aggravation is intended to be relied upon it shall be charged in the indictment.”

	Mr Bannon QC, for the respondent, argued that s 305(4) applied only to indictments.  He submitted that in The Queen v De Simoni (1980-81) 147 CLR 382, it was held by the High Court that where the Crown intends to rely upon a circumstance of aggravation to attract a higher penalty it must be pleaded; but that otherwise it is not necessary to do so.  In this case it was submitted that the failure to plead that the victim suffered bodily harm did not matter as the circumstances of aggravation pleaded in relation to the second count already attracted the maximum of five years.  Further, it was submitted that the learned magistrate in his sentencing remarks, although he referred to the bruises suffered by the victim and the broken tooth, did so in the context of indicating the nature of the assault carried out on the victim which he described as having “all the appearances of a cruel and brutal attack” and a “sustained attack”.

	It seems to me that ground four is not made out.  There is nothing in the learned magistrate’s reasons to suggest that he did anything more than refer to the injuries for the purpose of indicating the nature of the attack which was carried out upon the victim, rather than to place reliance upon those matters as going to show that she suffered bodily harm.  It is therefore unnecessary for me to decide whether or not the fact that the victim suffered bodily harm should have been pleaded.

	As to ground five, it is true that the magistrate does not specifically refer to the possibility of a suspended sentence in his sentencing remarks.  Counsel for the appellant submitted that the appellant ought to have been assessed for community service.  The learned magistrate declined to do this because he regarded the attacks as too serious to be expiated by community work.  It was submitted by Ms Gibson that I should infer from this that he had failed to consider other sentencing options open to him.  I do not think that such an inference can be drawn.  The learned magistrate is a very experienced magistrate and is well aware of the sentencing options which are open to him.  It has often been said by this court that sentencing remarks of magistrates given ex tempore are not to be submitted to microscopical analysis and that one cannot infer merely because the magistrate failed to specifically mention other lesser options than immediate imprisonment which might have been open to him that he did not nevertheless consider them.  Accordingly, I do not consider that ground five has been made out.

	I turn now to deal with ground one.  No statistics were put before me as to what the relevant tariff is for offences of this kind.  This is perhaps not surprising given the wide range of sentences available for aggravated assault.  As has been observed by the Full Court of the Supreme Court of South Australia in Yardley v Betts (1979) 22 SASR 108 @ 113, assaults vary considerably in seriousness depending upon the circumstances of the offender and of the offence.  Admittedly the appellant in this case is a relatively young man with no relevant prior convictions.  However, both assaults were of a serious nature.  In the case of the assault involving Mr Tyler, he suffered a broken arm as a result of his trying to prevent the appellant from assaulting his wife in the ladies toilet of the hotel.  So far as the second count was concerned, the assault was rightly described by the magistrate as being a cruel and brutal attack and one that was sustained over a long period.  It involved the appellant grabbing his wife by the hair and marching her back to Red Gum over a distance of a kilometre, placing her in a chair and then assaulting her about the face with clenched fists, knocking her to the ground and hitting her around the face, mouth, neck and arms.  It also involved the use of the garden hose and the piece of ant hill.

	Having regard to the seriousness of both assaults, I do not think it has been established that the sentences imposed by the learned magistrate were manifestly excessive.

	As to ground two, it is clear that the learned magistrate was concerned to ensure that the sentences he imposed had a significant element of general deterrence.  I do not think that it has been demonstrated that he was wrong in his approach to the matter.

	As to the third ground of appeal, the weight to be given to the rehabilitative aspects of sentencing must be less where there are significant acts of violence warranting deterrent sentences.  I do not think it has been demonstrated that the magistrate fell into error.

	Accordingly, the appeal is dismissed.

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